United States Court of Military Commission Review
Post Office Box 3627
Arlington, V.A. 22031
SCHEDULED HEARING
______________________________________________________________
Friday, August 24, 2007
10:00 a.m. at Courtroom 201 of the United States Court of Appeals for the
Federal Circuit, 717 Madison Place, N.W., Washington D.C. 20439.
United States v. Omar Ahmed Khadr
Counsel for Prosecution: Major Jeffrey D. Groharing, Captain Keith Petty, and
Francis Gilligan, Esq.
Counsel for Accused: Lieutenant Commander William Kuebler, Rebecca S.
Snyder, Esq., and Nathan Whitling, Esq.
Case Summary: US Forces captured the Accused in Afghanistan. In April 2007,
the Convening Authority referred charges to trial by a military
commission of murder and attempted murder in violation of the
laws of war, conspiracy, providing material support for terrorism
and spying. In June 2007, the Trial Judge dismissed the charges
for lack of jurisdiction.
ISSUE I: Whether the Trial Judge correctly decided that the
military commission lacked jurisdiction.
ISSUE II. Whether US Court of Military Commission Review
proceedings should be abated because the Deputy Secretary of
Defense assigned the judges, rather than the Secretary of
Defense.
ISSUE III. Whether the Acting Chief Judge lacked authority to
assign the particular judges to hear the case of the Accused.

My first thought was that the Foreign Intelligence Surveillance Court (FISC) had shifted the chore
of stiffing the public for information about the legal justification for warrantless surveillance from
itself, to the NSA/DOJ/snooper. It turns out my first thought sucked.

My second thought is that the government should (meaning this is the best response, not necessarily that I like it)
reply that the FISC lacks the power to issue the order it issued, because the FISC is a court of limited jurisdiction,
and the order to respond to the ACLU motion is not something associated with that limited jurisdiction.
The jurisdiction of the FISC is set forth in
50 USC 1803(a).

... shall have jurisdiction to hear applications for and grant orders approving electronic surveillance
anywhere within the United States under the procedures set forth in this chapter ...

That's the sum total of the FISC jurisdiction, to hear applications for and to grant orders under FISA.
The ACLU motion is not an application for a surveillance order under FISA.

Just as a quick aside,
50 USC 1803(b) establishes a Court of Review (FISCR), which has similarly limited jurisdiction.

... a court of review which shall have jurisdiction to review the denial of any application made under this chapter

Judge Kollar-Kotelly's Order in response to the ACLU motion is acting completely outside of the FISC jurisdictional
limits and powers, established by a statute duly passed by Congress and signed into law by the president.

True, the FISCourt rules that provide for motion and appearances relate to parties who have applied
for court orders (i.e., "warrants"). True also, in some cases, those appearances may be by non-government attorneys.
But in every case, without a single exception, the issue before the Court is an application for a court order
to undertake surveillance for the purpose of acquiring foreign intelligence information.

Arguing the other side, other federal courts entertain motions of non-parties to unseal. I have in mind the
recent unsealing of the affidavits of Special Counsel Patrick Fitzgerald in the case where he sought a court
order to compel testimony of reporters Miller and Cooper in the Plame leak investigation. So, it isn't
literally true that a Court will only take papers that are (a) from a party to the action, and (b) cast
"exactly" in the framework of their jurisdictional grant.

But even if the FISCourt somehow construes its grant of jurisdiction to include entertaining motions to unseal, by the
public (Katie, bar the door), the FISCourt is also bound by law to maintain its files as "classified," and the
government, not the FISCourt, is the classification authority. When it comes to foreign intelligence, the Courts
have held themselves incompetent to make judgments and render opinions. Foreign intelligence is the sole province
of the executive, and it is up to the executive to balance the disclosure of foreign intelligence against other
interests.

In short, even if the government concedes that the FISCourt has jurisdiction to take the ACLU motion, the
government can note that the FISCourt lacks the power to order (compel) a remedy, and is therefore out of
line to order the government to make a substantive reply.

To my way of thinking, when a Court lacks the power to order a remedy, then a request for that remedy, no
matter how well justified, is a request that falls outside that Court's jurisdiction. That doesn't mean
an opinion won't issue. See Marbury v. Madison, for starters.

The record of proceedings under this chapter, including applications made and orders granted,
shall be maintained under security measures established by the Chief Justice in consultation with
the Attorney General and the Director of National Intelligence.

I think this ACLU motion and the FISC public Order amount to something in the nature of a political
publicity stunt. The FISC Order will, as a matter of fact, create a response from the administration. But
as a matter of law, I see no way for the ACLU action to result in the compelled release of even one fully
redacted page of an application for a surveillance order, let alone the Court's response to the application.
If there is a release, it will be because the government chooses to make a release, not because the Court
ordered the release.

There will be an appeal by the ACLU on the FISC's inevitable self-determination that it lacks jurisdiction,
and that even if it had jurisdiction to entertain a motion to release it's orders, it lacks the power to compel the
government to declassify even one period, comma or hyphen of the documents the ACLU seeks.
The
ACLU sought SCOTUS review of the FISCR's In re: Sealed Case, and it will do the same thing
with whatever ruling and material flows from it's Motion to Unseal NSA Wiretapping Orders of 2007.

Congress set up and walled-off this FISC critter, and the ball will eventually wind up back in Congress's lap.
What the people do with it there is anybody's guess. My guess is "a little bit of bitching, then more secrecy
in government." There is no way in creation that a change in this law can be worked to a veto-proof majority.
If the people want a secret sub-system of government, well, by golly, what the people want, they will get.
The funny thing is, it being secret, they won't know what they got!

A reading list on the subject might focus on "state secrets." I've been looking for the Circuit
Court opinion in United States v. Reynolds, 192 F.2d 987 (3rd Cir., 1951) ... so far to no avail.
The 3rd Circuit was reversed by SCOTUS, on a 6-3 ruling. The dissent of Justices Black, Frankfurter
and Jackson was brief, "dissent, substantially for the reasons set forth in the opinion of Judge
Maris below. 192 F.2d 987."

* This, about the underlying action in the US v. Reynolds case, illustrates an important principle.

The District Court ordered the Government to produce
the documents in order that the court might determine whether they contained privileged matter. The Government
declined, so the court entered an order, under Rule 37(b)(2)(i), that the facts on the issue of negligence would
be taken as established in plaintiffs' favor. After a hearing to determine damages, final judgment was entered for the
plaintiffs. The Court of Appeals affirmed, both as to the showing of good cause for production of the documents, and
as to the ultimate disposition of the case as a consequence of the Government's refusal to produce the documents. ...

Before the District Court was able to consider the case on remand, the parties settled for 75% of the District
Court's original verdict and the case was then dismissed with prejudice.

IOW, the government's failure to produce the documents about the flight was taken by the court
to establish that the government was negligent regarding the fatal flight.

This result doesn't necessarily pertain, depending on the relationship between the secret, and the
gravamen of the action. See
Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982), where a claim against the NSA could not stand once
the NSA asserted "state secret," but a claim against the CIA (on an inference that the withheld evidence was
against the CIA's position) could proceed.

---===---

I need to research defunct FRE 509,
and ponder the effect of state secrets on suits against AT&T for damages for violations of privacy.
The rule being "as though the witness has died" leaves the evidence out of the case, unlike the result
in Reynolds where the absence of evidence was taken against the party who asserted the privilege.

UNITED STATES

FOREIGN INTELLIGENCE SURVEILLANCE COURT

WASHINGTON, D.C.

Docket Number: MISC. 07-01

IN RE MOTION FOR RELEASE OF
COURT RECORDS

SCHEDULING ORDER

The American Civil Liberties Union has filed a third party motion seeking the release of
what it identifies as Court records. This is an unprecedented request that warrants further
briefing.

IT IS HEREBY ORDERED

1) that the United States shall file a response to the Motion on or before August 31, 2007.
The United States shall serve a copy of its response upon the movant. In the event that the
United States determines it is necessary to include in its response material that it seeks to file
under seal and ex parte, the United States shall file a motion to seal that material and a copy of an
unredacted and redacted response shall accompany the motion to seal. If the United States
includes material in its response which the United States is seeking to file under seal, it shall
serve upon the movant a redacted copy of the response pending a ruling on the motion to seal. 1

1 Nothing in this Order shall be interpreted as modifying FISC Rule of Procedure 3 or any
other applicable rule or security procedure of this Court.

2) that the American Civil Liberties Union may file a reply memorandum on or before
September 14, 2007. The American Civil Liberties Union shall serve a copy of its reply upon the
United States.

Jancice Rogers Brown dissented. The opinion views the case (and the issue
of state secrets privilege) from both sides.

Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the
Clerk of any formal errors in order that corrections may be made before the
bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2006 Decided June 29, 2007
Unsealed July 20, 2007
No. 04-5313
IN RE: SEALED CASE
Appeal from the United States District Court
for the District of Columbia
(No. 94cv01756)
Brian C. Leighton argued the cause and filed the briefs for
appellant.
H. Thomas Byron III, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and
Barbara L. Herwig and Douglas Letter, Attorneys.
Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
2
Concurring and dissenting opinion filed by Circuit Judge
BROWN.
ROGERS, Circuit Judge: In this appeal, the court must
decide whether the state secrets privilege requires the dismissal
of Richard A. Horn's complaint alleging the violation of his
Fourth Amendment rights. We affirm the district court's
determinations that the United States properly invoked the
privilege and that the complaint must be dismissed against one
of the defendants. However, we hold that Horn can establish a
prima facie case without using the privileged information.
Accordingly, we reverse the dismissal of his complaint against
the remaining defendant and remand the case to the district court
to consider whether Horn's case can proceed.
I.
According to the complaint, in 1993, Horn was stationed in
Rangoon, Burma, as the country attaché for the United States
Drug Enforcement Agency ("DEA"). He had a strained
professional relationship with the State Department Chargé
d'Affaires, Franklin "Pancho" Huddle, Jr., arising from the
differing policy goals of their agencies, and he believed that
Huddle was seeking information to justify Horn's transfer to
another station outside of Burma. When Horn discovered that
Huddle had sent a classified State Department cable allegedly
transcribing a telephone call that Horn had made to a
subordinate from his residence, he concluded that Huddle was
engaging in electronic eavesdropping in violation of the Fourth
Amendment.
3
In 1994, Horn filed a Bivens1 action against Huddle and a
second unnamed defendant ("Defendant II"), allegedly an
employee of the Central Intelligence Agency ("CIA"), whose
identity is classified. The United States intervened in 2000 and
asserted the state secrets privilege with respect to portions of
two internal investigations by agency inspectors general ("IG
reports") that had been conducted in response to Horn's
allegations. The district court sustained the claim of privilege.
The government filed a classified motion to dismiss the
complaint on November 7, 2000, and provided a redacted copy
to Horn. Horn responded with a motion to proceed with
discovery under the Classified Information Procedures Act
("CIPA"), 18 U.S.C. app. III, on November 13, 2000, deferring
any response to the government's motion until the district court
resolved his proposal to proceed under CIPA and his prior
motion seeking security clearance for his attorney's secretaries.
Nearly four years later,2 on July 28, 2004, the district court
granted the government's motion to dismiss the complaint
pursuant to FED. R. CIV. P. 12(b)(6) and dismissed Horn's
outstanding motions as moot. The district court ruled that
dismissal was required on three independent grounds: (1) the
plaintiff cannot make out a prima facie case absent the protected
material; (2) the state secrets privilege deprives the defendants
of information required in their defense; and (3) the subject
matter of the plaintiff's complaint is a state secret.
1
Bivens v. Six Unknown Named Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). Horn's complaint also alleged
violations of anti-wiretapping statutes and conspiracy; these claims
were dismissed in 1997. A putative class action filed by Horn was
dismissed in 2000. Horn does not pursue these matters on appeal.
2
The district court judge to whom the case was originally
assigned died and the case was reassigned in 1999.
4
Horn appeals, and our review of the dismissal of his
complaint is de novo. See, e.g., Broudy v. Mather, 460 F.3d 106,
116 (D.C. Cir. 2006).
II.
The state secrets privilege "is a common law evidentiary
rule that protects information from discovery when disclosure
would be inimical to the national security." In re United States,
872 F.2d 472, 474 (D.C. Cir.), cert. denied sub nom. United
States v. Albertson, 493 U.S. 960 (1989). It has "its initial roots
in Aaron Burr's trial for treason, United States v. Burr, 25 F.
Cas. 30 (C.C.D. Va. 1807), and has its modern roots in United
States v. Reynolds, 345 U.S. 1 (1953)." Id. at 474-75. In
Reynolds, the Supreme Court held that because the Federal Tort
Claims Act ("FTCA") subjects the United States to liability only
insofar as Congress has consented, and because the FTCA
expressly incorporates the Federal Rules of Civil Procedure, the
United States may claim a privilege against discovery of military
and state secrets, pursuant to FED. R. CIV. P. 34, through a
formal request "lodged by the head of the department which has
control over the matter, after actual personal consideration by
that officer." 345 U.S. at 6-8 (footnote omitted). The Court
observed that the "constitutional overtones" were "unnecessary
to pass upon, there being a narrower [statutory] ground for
decision." Id. at 6. In Reynolds, "[i]t [wa]s . . . apparent that
the[] electronic devices [that were being tested in flight when the
military airplane crashed and killed the plaintiffs' spouses] must
be kept secret if their full military advantage is to be exploited
in the national interests." Id. at 10. The Court remanded the
case to proceed without the privileged materials, id. at 12,
having noted that because the surviving crew members were
available for examination, "it should be possible for [the
plaintiffs] to adduce the essential facts as to causation without
resort to material touching upon military secrets," id. at 11.
5
On appeal, Horn contends that the state secrets privilege
may not be invoked in a Bivens action and, alternatively, that his
case may proceed with non-privileged materials, including a
declassified redacted cable and other circumstantial evidence
suggesting that Huddle and Defendant II violated Horn's
constitutional rights. We first address Horn's challenge to the
application of the privilege in a Bivens action and his alternative
contention that the United States did not properly invoke the
privilege. Neither contention is persuasive.
A.
Unlike the plaintiffs in Reynolds, Horn does not rely upon
the FTCA's limited waiver of sovereign immunity. As a result,
he contends that the privilege is unavailable to the United States.
Horn's complaint invokes Bivens, which provides that "damages
may be obtained for injuries consequent upon a violation of the
Fourth Amendment by federal officials" notwithstanding the
lack of an explicit statutory cause of action, 403 U.S. at 395-97.
The district court ruled that it was "settled, indisputable law"
that the Fourth Amendment protects American citizens abroad,
see, e.g., United States v. Behety, 32 F.3d 503, 510-11 (11th Cir.
1994); United States v. Mount, 757 F.2d 1315, 1317-18 (D.C.
Cir. 1985), and the United States does not challenge that ruling
on appeal.
The distinction pressed by Horn between constitutional
claims and those based on statutory grounds means that
Reynolds' holding on statutory grounds does not control.
Nonetheless, it hardly follows that the privilege evaporates in
the presence of an alleged constitutional violation. Horn
identifies no legal authority to support this conclusion. Instead,
the nature of the state secrets privilege compels the conclusion
that the United States may claim the privilege as to evidence
relevant to a constitutional claim. Even in constitutional cases,
Congress "has plenary authority over the promulgation of
6
evidentiary rules for the federal courts." Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 31 (1976); see also Hawkins v.
United States, 358 U.S. 74, 78 (1958); Tot v. United States, 319
U.S. 463, 467 (1943). The federal rules of evidence provide that
claims of privilege are to be "governed by the principles of the
common law . . . in the light of reason and experience." FED. R.
EVID. 501; see United States v. Green, 670 F.2d 1148, 1155 n.10
(D.C. Cir. 1981). In Reynolds, the Supreme Court made clear
that "the privilege against revealing military secrets . . . is well
established in the law of evidence." 345 U.S. at 6-7.
Although the rules of evidence must yield when they offend
the constitutional trial rights of litigants, see Tot, 319 U.S. at
467; FED. R. EVID. 501, Horn identifies no trial right that is
being abridged. In Horn's view, it is the constitutional nature of
his underlying claim that entitles him to escape the binds of the
federal rules. We can find no support for this position, which
would essentially allow any constitutional claim to repress any
rule that withholds evidence for reasons other than relevance,
see, e.g., FED. R. EVID. 403, 407, 411, 802. The federal rules are
premised on a distinction between substantive claims and the
evidence used to prove the claims. Cf. Hanna v. Plumer, 380
U.S. 460 (1965). Although evidentiary matters are governed by
the rules, they cannot modify litigants' substantive rights as to
either constitutional or statutory matters. See 28 U.S.C.
§ 2072(b); cf. Webster v. Doe, 486 U.S. 592, 603-04 (1988).
Thus, so long as the state secrets privilege operates as a rule of
evidence, see Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d
544, 546 (2d Cir. 1991); In re United States, 872 F.2d at 474,
and not as a means to modify Horn's substantive constitutional
rights, we hold that it may be invoked by the United States in a
Bivens action. See also El-Masri v. United States, 479 F.3d 296,
300 (4th Cir.), petition for cert. filed, 75 U.S.L.W. 3663 (U.S.
May 30, 2007) (No. 06-1613); Black v. United States, 62 F.3d
7
1115, 1117 (8th Cir. 1995); Halkin v. Helms, 690 F.2d 977, 987
& n.42 (D.C. Cir. 1982) ("Halkin II").
B.
Notwithstanding the deference due to Executive Branch
claims of privilege, the Supreme Court instructed in Reynolds
that the state secrets privilege is not to be "lightly invoked," 345
U.S. at 7, because, as this court has observed, once invoked, the
privilege is "absolute" and "cannot be compromised by any
showing of need on the part of the party seeking the
information," Northrop Corp. v. McDonnell Douglas Corp., 751
F.2d 395, 399 (D.C. Cir. 1984). Accordingly, this court has
emphasized that the district court must scrutinize the claim of
privilege more carefully when the plaintiff has "made a
compelling showing of need for the information in question,"
Ellsberg v. Mitchell, 709 F.2d 51, 59 n.37, 61 (D.C. Cir. 1983),
cert. denied, 465 U.S. 1038 (1984); see Reynolds, 345 U.S. at
11, and this court's review of the district court's determination
that the "affidavits [are] adequate to establish the reasonable
danger of injury," is for abuse of discretion, Halkin II, 690 F.2d
at 991. To sustain the assertion of privilege, the district court
need not have complete knowledge of how disclosure would
cause a specific security breach, see In re United States, 872
F.2d at 475; it is sufficient that the reports present "a reasonable
danger of divulging too much to a `sophisticated intelligence
analyst,'" id. (quoting Halkin v. Helms, 598 F.2d 1, 10 (D.C.
Cir. 1978) ("Halkin I")). As the Supreme Court observed in
Reynolds, where it is possible to determine "from all the
circumstances of the case" that such danger exists, "the occasion
for the privilege is appropriate, and the court should not
jeopardize the security which the privilege is meant to protect by
insisting upon an examination of the evidence, even by the judge
alone, in chambers." 345 U.S. at 10.
8
The district court reviewed the unclassified declarations of
then-Director of Central Intelligence George J. Tenet and then-
Deputy Secretary of Defense John J. Hamre, which set forth
their personal consideration of Horn's allegations and the
national security interests involved, as well as additional
classified declarations filed ex parte and in camera. The district
court also requested the ex parte, in camera submission of the
reports subject to the claim of privilege. On the basis of its
review, the district court concluded that national security would
be compromised if the portions of the IG reports for which the
United States claimed a privilege were disclosed. Specifically,
the district court found that releasing those portions of the IG
reports would create the risk of revealing covert operatives,
organizational structure and functions, and intelligence-
gathering sources, methods, and capabilities.
Upon review of the IG reports and the affidavits submitted
by the United States, we find no abuse of discretion by the
district court in ruling that the United States has made the
requisite showing as to the portions of the two IG reports over
which the United States claimed privilege. Hence, these
portions of the IG reports were properly stricken as evidence in
the case.
III.
When the state secrets privilege is successfully invoked,
"[t]he effect . . . is well established: `[T]he result is simply that
the evidence is unavailable, as though a witness had died, and
the case will proceed accordingly, with no consequences save
those resulting from the loss of the evidence.'" Ellsberg, 709
F.2d at 64 & n.56 (quoting MCCORMICK'S HANDBOOK OF THE
LAW OF EVIDENCE 233 (E. Cleary ed., 1972) and citing the
advisory committee's note to PROP. FED. R. EVID. 509(d), 56
F.R.D. 183, 254 (1972), which "was rejected by Congress for
9
reasons unrelated to the Committee's recognition of th[is]
principle"). Government participation in the case results in "no
alteration of pertinent substantive or procedural rules." Id. at 64.
In general, against a motion to dismiss, "once a claim has been
stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint," Bell Atl.
Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007), "construing the
complaint liberally in the plaintiff's favor with the benefit of all
reasonable inferences derived from the facts alleged." Stewart
v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006). In the
context of the state secrets privilege, the court has recognized
that where, as here, the plaintiff is not in possession of the
privileged material, "dismissal of the relevant portion of the suit
would be proper only if the plaintiff[] w[as] manifestly unable
to make out a prima facie case without the requested
information." Ellsberg, 709 F.2d at 65; see also In re United
States, 872 F.2d at 476. We address each of the grounds on
which the district court dismissed the complaint.
A.
The district court ruled that Horn could not make out a
prima facie case without the use of privileged information. In
many state secrets cases, a plaintiff has no prospects of evidence
to support the assertions in his complaint and this lack of
evidence requires dismissal. See, e.g., Ellsberg, 709 F.2d at 65;
Halkin I, 598 F.2d at 10-11; see also El-Masri, 479 F.3d at 308-
09; Kasza v. Browner, 133 F.3d 1159, 1170 (9th Cir. 1998);
Bareford v. Gen. Dynamics Corp., 973 F.2d 1138, 1140-42 (5th
Cir. 1992); Zuckerbraun, 935 F.2d at 547. Here, however, Horn
is not without evidence. As the United States acknowledged
through the Director of Central Intelligence, "[c]ertain
documents appearing as joint report attachments [to one of the
IG reports] and which contain little or no state secrets
information can be segregated (in redacted or unredacted form,
respectively) at no risk to U.S. national security." Tenet Decl.
10
¶ 33. Thus, although Horn cannot access the privileged portions
of the IG reports, the question remains whether he can make out
a prima facie case for a Bivens violation with the unprivileged
evidence. At this stage of the proceedings, Horn must supply
sufficient allegations that a federal agent, acting under color of
his authority, violated his Fourth Amendment rights, but he need
not disprove possible defenses. See Bivens, 403 U.S. at 389;
Ellsberg, 709 F.2d at 68.
Horn's basic claim is straightforward: Late at night on
August 12, 1993, he placed a phone call from his personal
residence to a DEA subordinate, David Sikorra. He expressed
concern that Huddle was trying to expel him from Burma and
that DEA might respond by closing its Burma office. Soon
thereafter, Horn learned of a cable, since declassified in part,
that Huddle sent to State Department officials in Washington,
D.C. This cable, which is dated August 13, 1993, contains an
unclassified paragraph that reads:
Finally, Horn shows increasing signs of evident strain.
Late last night, for example, he telephoned his junior
agent to say that "I am bringing the whole DEA
operation down here." "You will be leaving with
me . . . We'll all leave together." In this context, he
then went on to note talks with [DEA officials] Greene
and Maher without explicitly drawing a connection.
Cable from Franklin Huddle, American Embassy, Rangoon,
Burma, to Secretary of State, Washington, D.C. ¶ 6 (Aug. 13,
1993) ("Huddle Cable") (ellipses in original). On the basis of
this cable, which Horn claims quotes him verbatim, Horn
concluded that someone was eavesdropping on his personal
conversation with Sikorra.
11
In an unclassified and unprivileged affidavit submitted to
the district court, Huddle insisted instead that Horn's
conversation had spread by word of mouth. Huddle averred that
he told the IG investigators that the information in the cable was
provided to him by DEA Special Agent Bruce Stubbs. Special
Agent Stubbs, for his part, denied, in the declassified portion of
the IG report, telling anything to Huddle about Horn's
conversation with Sikorra. According to unclassified and
unprivileged information, Stubbs was on official travel during
the relevant time period and told IG investigators that he neither
saw Huddle in person nor contacted him by telephone. Stubbs
insisted that he did not learn of Horn's conversation with Sikorra
until he returned to Rangoon on August 26, 1993, almost two
weeks after Huddle sent the cable to the State Department.
Further, Stubbs swore in an unclassified and unprivileged
affidavit that Huddle had contacted him while the IG
investigation was pending to discuss how Stubbs had told
Huddle about Horn's statement. Stubbs averred that he had no
such recollection and that Huddle's telephone call was improper,
to which Huddle responded that he was merely "prescreening
[Stubbs] to determine [his] recollections of Horn's allegations."
Stubbs Aff. para. 8. This aspect of Stubbs' affidavit is supported
by a file memorandum that he wrote on September 22, 1994, the
day after he was contacted by Huddle. When confronted with
Stubbs' affidavit, Huddle told investigators in writing that he
"stand[s] by [his] statement." Huddle Stmt. (Nov. 7, 1995).
Horn thus contends, in view of the unclassified and
unprivileged materials, that he has demonstrated a prima facie
case because the district court found that the redacted cable
showed eavesdropping as the source of information, and the
declassified interviews with personnel then stationed at the
Embassy in Rangoon establish that Huddle did not learn of
Horn's conversation, either verbatim or otherwise, from Stubbs
or anybody else, leaving unconstitutional surveillance as the
12
only remaining option. Although Horn has no direct evidence
that Huddle participated in an unlawful surveillance, he relies on
the following circumstantial evidence:
First, in November 1992 there was a suspicious entry into
his apartment in Burma when, unsolicited, his government-
issued rectangular coffee table was swapped for an oval
replacement while he was out of town. He was advised that his
"original coffee table was needed to complete a sofa set at
another residence." Memorandum from Richard A. Horn on
Questionable Furniture Movement para. 3 (Feb. 27, 1995). Horn
characterized this conduct as "peculiar" and notes that "[a]
telephone was located in this room within close proximity to the
aforementioned coffee table." Id. para. 4.
Second, Horn traces the limited spread among Embassy
personnel of his conversation with Sikorra, emphasizing that
Huddle's source was specific enough to allow Huddle to use
quotation marks and ellipses in the cable. In declassified
statements, Sikorra explained that he told only a secretary, Mary
Weinhold, about the disturbing telephone call; Mrs. Weinhold
explained that no one could have overheard her conversation
with Sikorra and that she does not recall having told her
husband, who also worked at the Embassy, about Horn's
conversation; Mr. Weinhold corroborated his wife's
recollection; and Huddle's deputy at the Embassy stated his
belief that Huddle was aware of the conversation between Horn
and Sikorra before he was.
The district court "verified that indeed, [the Huddle cable]
is a verbatim reproduction of parts of Horn's conversation with
Sikorra, using quotation marks and ellipses, and a paraphrasing
of other parts -- evidence that Horn's conversation had been
wiretapped." Mem. Op. of Feb. 10, 1997, at 4. Nonetheless, the
district court found Horn's allegations insufficient to establish
13
a prima facie case. Mem. Op. of July 28, 2004, at 10. The
district court reasoned that Defendant II's identity is protected
and that there is no unprivileged evidence connecting him to
Horn's allegations. As to both defendants, the district court
concluded,
[a]t most [Horn] has a dispute about whether or not
[Huddle] learned the information from another person
or from [unconstitutional surveillance]. But [Horn]
cannot establish a prima facie case by offering any
evidence that [surveillance] occurred. Therefore,
[Horn]'s case must be dismissed because [Horn] cannot
establish a prima facie case against either defendant.
Id. at 10-11 (italics added).
As to Defendant II, the district court's reasoning is
persuasive. Nothing about this person would be admissible in
evidence at a trial, so even construing the allegations in the
complaint liberally does little for Horn's claim. However, as to
Huddle, we are unpersuaded that Horn could prove no facts that
would lead a reasonable jury to conclude that Huddle had
violated his constitutional rights. Although Horn's case is
premised on circumstantial evidence, "[a]s in any lawsuit, the
plaintiff may prove his case by direct or circumstantial
evidence." U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 714 n.3 (1983); see also Doe v. U.S. Postal Serv., 317
F.3d 339, 343 (D.C. Cir. 2003). Horn can point to the highly
suspicious use in the cable of quotation marks and ellipses that
creates an inference that the conversation has been transcribed,
the seeming impossibility that Huddle would have learned of the
conversation by lawful means, and the inconsistencies
underlying Huddle's explanation about how he learned of the
conversation. Further, even if a reasonable jury found that
Horn's conversation with Sikorra was gossip-worthy and might
14
have spread through the Embassy, it could still reasonably infer
that eavesdropping had occurred from the following sentence in
the cable, which appears less likely to have spread through
office chatter: "In this context, he then went on to note talks
with Greene and Maher without explicitly drawing a
connection." Huddle Cable ¶ 6.
Against this proffer of evidence by Horn, the United States
offers that "[Horn's] unsupported assertions [about
eavesdropping] rely on hearsay concerning the [investigations
by the] Inspectors General, and cannot be the subject of more
proof because the contents of [portions of] the Inspector General
reports are privileged." Appellees' Br. at 35 n.12. This
argument fails for two reasons. First, to avoid dismissal of his
complaint under FED. R. CIV. P. 12(b)(6), Horn need not plead
the facts sufficient to prove his allegations and evidence that will
ultimately be used at trial. See Covad Commc'ns Co. v. Bell Atl.
Corp., 398 F.3d 666, 671 (D.C. Cir. 2005); Warren v. District of
Columbia, 353 F.3d 36, 39-40 (D.C. Cir. 2004); FED. R. CIV. P.
8(a). Second, although the IG reports are privileged in part, the
interviews Horn could rely upon, such as those with Embassy
personnel, would involve conversations that have been
declassified. As such, there would be no barrier to his calling
the affiants as witnesses in order to testify to these unclassified
matters, which are not subject to the state secrets privilege.
Thus, even after evidence relating to covert operatives,
organizational structure and functions, and intelligence-
gathering sources, methods, and capabilities is stricken from the
proceedings under the state secrets privilege, Horn has alleged
sufficient facts to survive a motion to dismiss under Rule
12(b)(6).
B.
The district court also ruled that Horn's complaint must be
dismissed because without the state secrets evidence the
15
defendants must proceed without materials they would need to
mount possible defenses. As a general principle, privileged
evidence is unavailable to either party, and neither party may
rely upon the stricken evidence to its advantage. The Supreme
Court in Reynolds thus admonished that the state secrets
privilege is not to be "lightly invoked." 345 U.S. at 7. As Judge
Learned Hand observed, a claim of the state secrets "privilege
will often impose a grievous hardship, for it may deprive
parties . . . of power to assert their rights or to defend
themselves. That is a consequence of any evidentiary privilege."
United States v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950); see
also Northrop Corp., 751 F.2d at 399.
Notwithstanding the general rule that neither party may use
privileged evidence, this court has allowed limited use to avoid
the inequity caused when the United States asserts its privilege
at the possible expense of a civilian defendant. Thus, in
Ellsberg, the court suggested that qualified immunity may
protect government officials against liability in this situation.
709 F.2d at 69 & n.74. Here, however, the district court rejected
Huddle's claim of qualified immunity, reasoning that "Horn's
allegations could constitute a violation of a clearly established
constitutional right" and that "a jury could reasonably find clear
and convincing evidence of defendants' unconstitutional
motive." Mem. Op. of Feb. 10, 1997, at 17-18.3 This court has
3
Because the defendants in this case lack qualified immunity,
our concurring and dissenting colleague suggests that the "`serious
injustice' identified in Ellsberg" remains. Concurring & Dissenting
Op. at 4. To the contrary, in Ellsberg, the court concluded:
In sum, the practicability of in camera resolution of
the immunity issue eliminates the possibility that the
defendants -- in this case or in future cases -- will be
trapped by the government's assertion of its state
16
also recognized that the excluded evidence may be used for the
limited purpose of demonstrating a "valid defense." In re
United States, 872 F.2d at 476; accord Molerio v. FBI, 749 F.2d
815, 825 (D.C. Cir. 1984). In Molerio, the court stated:
As a result of th[e] necessary process, the court knows
that the reason Daniel Molerio was not hired had
nothing to do with [his father's] assertion of First
Amendment rights. Although there may be enough
circumstantial evidence to permit a jury to come to that
erroneous conclusion, it would be a mockery of justice
for the court -- knowing the erroneousness -- to
participate in this exercise.
749 F.2d at 825. In distinguishing Ellsberg, where "the court's
consideration of the state secrets privilege did not ipso facto
disclose to the court the validity of the defense," the court in
Molerio concluded that "further activity in this case would
involve an attempt, however well intentioned, to convince the
jury of a falsehood." Id. (italics added).
Therefore, when the district court can determine that the
defendant will be deprived of a valid defense based on the
privileged materials, it may properly dismiss the complaint.
Other circuits have followed suit, relying upon Molerio to adopt
the "valid defense" standard. See, e.g., Tenenbaum v. Simonini,
372 F.3d 776, 777-78 (6th Cir. 2004); Kasza, 133 F.3d at 1166
(9th Cir.); Zuckerbraun, 935 F.2d at 547 (2d. Cir.); cf. Bareford,
973 F.2d at 1141 (5th Cir.). To the extent the Fourth Circuit
secrets privilege. And that result, in turn, alleviates
any qualms we might have concerning the result we
reach today.
709 F.2d at 70 (emphasis added).
17
recently referred to "hypothetical defenses" based on privileged
information in El-Masri, 479 F.3d at 309, its reference was made
in the context of determining whether the "state secrets are so
central to [the] proceeding that it cannot be litigated without
threatening their disclosure," id. at 308, see Part III.C, infra; as
relevant, the court reasoned that any valid defense to El-Masri's
allegations of illegal detention and torture would require resort
to privileged materials, id. at 308. Here, Huddle has already
revealed his defense -- that he learned of Horn's conversation
through Stubbs -- and it is unprivileged.
Although the district court found that Horn's complaint
must be dismissed because there are possible defenses that
Huddle cannot pursue without the resort to privileged materials,
this is quite different from the finding in Molerio that the
privileged materials showed that the defendant could not have
committed the alleged acts. A "valid defense," as contemplated
by this circuit's precedents, is meritorious and not merely
plausible and would require judgment for the defendant. See
BLACK'S LAW DICTIONARY 1586 (8th ed. 2004) (defining
"valid" as "[l]egally sufficient" and "[m]eritorious"); see also In
re United States, 872 F.2d at 481-82 (D.H. Ginsburg, J.,
concurring and dissenting) (agreeing with the court that "there
is simply no reason why plaintiff cannot go forward with her
claim" because "it is not at all clear that the Government's
[secret] defense is dispositive (or even meritorious * * * under
New York law)"). "Meritorious," in turn, means "meriting a
legal victory," BLACK'S LAW DICTIONARY, supra, at 1010.4
4
In other contexts, this court has consistently equated "valid"
with meritorious and dispositive. In a criminal case, the court
described a "valid defense" as one that "required acquittal." United
States v. DeFries, 129 F.3d 1293, 1309 (D.C. Cir. 1997) (per curiam).
In an exercise of pendent jurisdiction, the court observed that the
statute of limitations is a threshold question because if it is a "valid
18
Under this court's precedent, a claim of state secrets
privilege results in "no consequences save those resulting from
the loss of the evidence," including "no alteration of pertinent
substantive or procedural rules." Ellsberg, 709 F.2d at 64.5
Were the valid-defense exception expanded to mandate
dismissal of a complaint for any plausible or colorable defense,
then virtually every case in which the United States successfully
invokes the state secrets privilege would need to be dismissed.
This would mean abandoning the practice of deciding cases on
the basis of evidence -- the unprivileged evidence and
privileged-but-dispositive evidence -- in favor of a system of
conjecture. Just as "[i]t would be manifestly unfair to permit a
presumption of [unconstitutional conduct] to run against" the
defendant when the privilege is invoked, see Halkin I, 598 F.2d
at 10, it would be manifestly unfair to a plaintiff to impose a
presumption that the defendant has a valid defense that is
obscured by the privilege. There is no support for such a
presumption among the other evidentiary privileges because a
presumption would invariably shift the burdens of proof,
something the courts may not do under the auspices of privilege.
See 28 U.S.C. § 2072(b).
defense," then the court need not reach other defenses. Rendall-
Speranza v. Nassim, 107 F.3d 913, 916 (D.C. Cir. 1997). Simply put,
a "valid defense" in a civil case "prohibits . . . recover[y]." Graham
v. Davis, 880 F.2d 1414, 1418 (D.C. Cir. 1989).
5
Our concurring and dissenting colleague notes that this
portion of Ellsberg is dicta and thus not binding on this court. See
Concurring & Dissenting Op. at 3-4. This citation to Ellsberg is
limited to principles that the court described as so "well established"
and "settled" to have been "taken for granted." 709 F.2d at 64 &
nn.56 & 57 (quoting MCCORMICK'S HANDBOOK OF THE LAW OF
EVIDENCE, supra, at 233)).
19
Our concurring and dissenting colleague would have the
court replace this circuit's long-settled precedent, see, e.g.,
Molerio, 749 F.2d at 825; Ellsberg, 709 F.2d at 64; Halkin I, 598
F.2d at 10, with a broader use of privileged evidence under an
approach that considers the "distortion" effects of certain
omitted defenses. See Concurring & Dissenting Op. at 6-7.
Instead of understanding meritorious to mean "meriting a legal
victory," our concurring and dissenting colleague seems to liken
a meritorious defense to one that is merely potential or
colorable. See Concurring & Dissenting Op. at 5-8. While
suggesting that justice requires the court to withdraw from
proceedings even where such defenses become unavailable, our
colleague overlooks how this circuit's precedent has
accommodated the interests of both plaintiffs and defendants.
In suggesting that a defendant's interests require dismissing
actions because of plausible but not demonstrably valid
defenses, our colleague ignores how this would abridge the
rights of plaintiffs and discounts how the fundamental rights of
defendants are protected by dismissing cases when privilege
obscures a valid defense that is likely to cause the trier of fact to
reach an erroneous conclusion, In re United States, 872 F.2d at
476, or upon a legitimate claim of immunity, Ellsberg, 709 F.2d
at 69. This accommodation is hardly "defendant-adverse." See
Concurring & Dissenting Op. at 5. Faced with the opposite
situation, where a plaintiff has proof of a defendant's liability
that is inaccessible because of privilege, the courts are powerless
to afford a remedy. And to the extent that our colleague is
concerned that federal service will be burdened unless the court
intervenes, see id. at 6, that concern has already prompted the
court to strike an appropriate balance of interests by segregating
the unprivileged from the privileged materials so a plaintiff may
proceed and by allowing the limited use of privileged materials
by the defendant for purposes of claiming immunity or a valid
defense. See Ellsberg, 709 F.2d at 69.
20
Nor is it clear that the scales tip as our colleague suggests.
The Executive Branch is well positioned to protect the
incentives for federal service: it controls both the power to
invoke the state secrets privilege and the discretion to indemnify
an employee who is found liable for conduct that is taken within
the scope of employment. See 22 C.F.R. § 21.1; see also
Ellsberg, 709 F.2d at 69 n.74. Any non-pecuniary costs that
may not be susceptible to indemnification are outweighed by the
potential costs of a federal service that fails to protect its
employees' constitutional rights. It bears remembering that the
loss of evidence to the state secrets privilege is to be treated like
the loss of evidence when "a witness ha[s] died." Ellsberg, 709
F.2d at 64; accord Am.-Arab Anti-Discrimination Comm. v.
Reno, 70 F.3d 1045, 1070 (9th Cir. 1995). The death of a
witness, however, is not an occasion to dismiss complaints on
the basis of speculation about what the lost evidence might have
suggested. Where the United States has sufficient grounds to
invoke the state secrets privilege and decides to invoke it,
allowing the mere prospect of a privileged defense to thwart a
citizen's efforts to vindicate his or her constitutional rights
would run afoul of the Supreme Court's caution against
precluding review of constitutional claims, see Webster, 486
U.S. at 603-04, and against broadly interpreting evidentiary
privileges, for "[w]hatever their origins, . . . exceptions to the
demand for every man's evidence are not lightly created nor
expansively construed, for they are in derogation of the search
for truth," United States v. Nixon, 418 U.S. 683, 710 (1974).
Consequently, the district court may properly dismiss a
complaint because of the unavailability of a defense when the
district court determines from appropriately tailored in camera
review of the privileged record, Ellsberg, 709 F.2d at 64; see
Reynolds, 345 U.S. at 10, that the truthful state of affairs would
deny a defendant a valid defense that would likely cause a trier
to reach an erroneous result. Because the district court made no
21
finding that the existence of a valid privileged defense for
Huddle precluded the continuation of Horn's case, its second
ground cannot sustain the dismissal of Horn's complaint.
C.
The district court further ruled that "the very subject matter
of [Horn's] action is a state secret," therefore requiring dismissal
of his complaint. Mem. Op. of July 28, 2004, at 11. In
Reynolds, the Supreme Court acknowledged that there are cases
"where the very subject matter of the action . . . [is] a matter of
state secret." 345 U.S. at 11 n.26. The court referred to Totten
v. United States, 92 U.S. (2 Otto) 105 (1876), where the Court
affirmed the dismissal of a lawsuit surrounding a secret contract
to perform espionage. In Tenet v. Doe, 544 U.S. 1, 8-9 (2005),
the Supreme Court clarified that Totten, which eliminates
actions that "depend[] upon the existence of [a] secret espionage
relationship," performs a different function than Reynolds,
which merely affects the evidence available. The Court
explained that Totten's core concern is with "preventing the
existence of the plaintiff's relationship with the Government
from being revealed." Id. at 10. Here, once Defendant II is
dismissed from the case, the United States does not claim that
secret agreements of this sort are implicated.
Horn's case presents no occasion for using the evidentiary
privilege to eliminate substantive rights from the outset. In the
past, the court has not looked favorably upon broad assertions
by the United States that certain subject matters are off-limits for
judicial review, see In re United States, 872 F.2d at 477,
recognizing that "[d]ismissal of a suit, and the consequent denial
of a forum without giving the plaintiff her day in court, . . . is
indeed draconian," id.; cf. Webster, 486 U.S. at 603-04. In
Reynolds itself, at the height of the Cold War, the Supreme
Court remanded the FTCA case to proceed without the
privileged materials. See 345 U.S. at 12. Horn's prima facie
22
case against Huddle relies, subject to the constraints of the state
secrets privilege, upon the cable, the office chatter of Embassy
personnel, and a res ipsa loquitur inference as to Huddle's
source of information about Horn's conversation with Sikorra.
Cf. Barwick v. United States, 923 F.2d 885, 886-87 (D.C. Cir.
1991). The national security concerns expressed by the Director
of Central Intelligence in his unclassified declaration -- i.e.,
revealing identities of covert officers, locations of facilities,
organization of classified employees, and intelligence sources,
methods and capabilities -- are peripheral to what remains of
Horn's prima facie case. The United States makes no claim that
Horn has forfeited his constitutional rights by virtue of his
overseas assignment with the DEA.
To the extent our concurring and dissenting colleague
doubts that Horn's case can be litigated without compromising
state secrets, the record does not support the broad statement
that "the few unprivileged facts remaining are so entwined with
privileged matters, and the risk of disclosure of privileged
material so unacceptably high, that the very subject matter of
this action is a state secret." Concurring & Dissenting Op. at 11.
The declaration of the Director of Central Intelligence rejects the
notion that all of Horn's lines of inquiry are inextricably
interwoven. Whereas all discussion of intelligence sources,
capabilities, and the like must be protected, the Tenet
Declaration acknowledges that the remaining material -- most
notably the redacted cable and the IG interviews with Huddle
and Embassy personnel -- "can be segregated . . . at no risk to
U.S. national security." Tenet Decl. ¶ 33. To dismiss Horn's
complaint on the broad grounds favored by our colleague would
be to adopt a "heads I win, tails you lose" approach to state
secrets: whenever the plaintiff lacks information about his claim,
the complaint must be dismissed for failure to make out a prima
facie case, but as soon as any information is acquired, it
becomes too risky to introduce the evidence at trial, also
23
necessitating dismissal. As our discussion reveals, neither the
Supreme Court nor this court has adopted such an all-or-nothing
approach.
Because the privileged material and the material comprising
Horn's prima facie case are of a different ilk, our concurring and
dissenting colleague's analogy to the law of the Fourth and Fifth
Circuits, see Concurring & Dissenting Op. at 8-9, is inapposite.
In Bareford, for example, the complaint alleged that a defense
contractor had defectively manufactured and designed a military
weapons system, see 973 F.2d at 1140. As the Fifth Circuit
recognized, any trial would be about the operation and defects
of the classified weapons system, which made it facially
impossible not to discuss the classified details of the military
secrets. Id. at 1144. In Fitzgerald v. Penthouse Int'l, Ltd., 776
F.2d 1236 (4th Cir. 1985), a claim of libel required the plaintiff
to establish that he had not, contrary to a report in Penthouse
magazine, published classified materials about experiments with
dolphins that were used to design torpedoes. Fitzgerald needed
to call an expert from the Defense Department in order to
establish that the material was not classified. Id. at 1242.
However, after an invocation of the state secrets privilege, the
Fourth Circuit concluded that the case could not proceed
because allowing testimony about what was not classified would
inevitably allow the inference as to what was classified. See id.
at 1243. Here, there is no claim that any of the unclassified
Embassy gossip borders upon or is suggestive of classified
materials -- otherwise, it would not have been declassified and
disclosed by the United States. By contrast, in El-Masri the
Fourth Circuit dealt with sensitive details of the United States'
program of extraordinary rendition for terrorism suspects and
the legality of the very classified program covered by the claim
of privilege, see 479 F.3d at 310-11. Finally, in Farnsworth
Cannon v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc)
(per curiam), the Fourth Circuit upheld the dismissal of a
24
contract case because the claim could not be adjudicated without
reference to the organizational structure of a certain Navy
component, which was classified.
In an apparent rush to judgment, our concurring and
dissenting colleague misstates the position of the court as
regards the consequences of state secrets evidence. See
Concurring & Dissenting Op. at 7-8. If the plaintiff cannot
establish a prima facie case, then the case must be dismissed.
Horn, however, can establish a prima facie case without use of
privileged materials. If the defendant proffers a valid defense
that the district court verifies upon its review of state secrets
evidence, then the case must be dismissed. The district court
made no such finding and Huddle has pointed to no such defense
on appeal. If the district court determines that the subject
matter of a case is so sensitive that there is no way it can be
litigated without risking national secrets, then the case must be
dismissed. But the district court has not yet evaluated the case
as it now stands and the Director of Central Intelligence suggests
that further proceedings should be possible.
The court does not take lightly the issues of national
security that Horn's complaint implicates. But at this juncture,
it is premature to use our shared concern about the conduct of
future proceedings to justify abandoning all attempts to resolve
Horn's remaining substantive dispute. The district court
analyzed the danger of proceeding to trial with reference to all
of the allegations in Horn's complaint against both defendants.
Upon removing Defendant II and the privileged portions of the
IG reports and thereby limiting Horn's claims, the information
that remains is, according to the Director of Central Intelligence,
segregable from the privileged materials such that its disclosure
entails "no risk" to national security. Tenet Decl. ¶ 33.
Although witnesses in the trial proceedings, including Horn, will
likely have had access to some classified materials in the course
25
of their federal employment in addition to the unprivileged
materials that form the basis of Horn's remaining claim, there is
no basis on this record for a presumption that a witness who has
access to classified materials is unable to testify without
revealing information that he knows cannot lawfully be
disclosed in a public forum. District courts are well-positioned
to resolve such concerns, as this court has recognized in
emphasizing the obligation to disentangle sensitive information
from non-sensitive information. In re United States, 872 F.2d
at 476 (citing Ellsberg, 700 F.2d at 57); see Reynolds, 345 U.S.
at 11. As such, there is no need to usurp this judgment from the
district court as our concurring and dissenting colleague would
prefer, see Concurring & Dissenting Op. at 11. It remains for
the district court on remand to determine what procedures would
be required to safeguard against disclosure of privileged
materials and then to determine whether Horn's lawsuit can
proceed. Were dismissal required based on the allegations now
before this court -- where Horn relies upon unclassified
materials that the United States submits are unrelated to areas of
national security sensitivity and Huddle has proffered no
privileged valid defense -- then federal government employees
could unnecessarily be denied an opportunity to enforce their
constitutional rights.
Accordingly, we affirm the dismissal of the complaint as to
Defendant II but, because the grounds specified by the district
court do not warrant dismissal of the complaint as to Huddle, we
reverse and remand the case to the district court with
instructions to reinstate the complaint against him. Nothing in
this opinion forecloses a further opportunity by the United States
to establish that privileged evidence demonstrates a valid
defense for Huddle. Similarly, nothing in this opinion forecloses
a determination by the district court that some of the protective
measures in CIPA, 18 U.S.C. app. III, which applies in criminal
cases, would be appropriate, as Horn urges, so that his case
26
could proceed. See, e.g., In re United States, 872 F.2d at 479-
80; McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983);
Ellsberg, 709 F.2d at 64. We vacate the district court's order
dismissing as moot Horn's motion regarding processing his
secretaries for security clearance, and we have no occasion to
address whether Horn or his counsel have a "need-to-know," see
Exec. Order No. 13,292, § 61(z), 68 Fed. Reg. 15,315, 15,332
(March 25, 2003), additional classified information.

BROWN, Circuit Judge, concurring and dissenting: I agree
with the majority that the government properly invoked the state
secrets privilege, the privilege applies in a Bivens action, and the
district court properly dismissed Horn's complaint as to Defen-
dant II.1 But we disagree about the proper legal standard for
determining when application of the privilege requires dismissal.
The majority's reversal of the district court's decision pushes
this circuit's state secrets jurisprudence in a new and troubling
direction -- one at odds with all other circuits that have consid-
ered the issue. Because, in my view, the district court reached
the correct conclusion, I respectfully dissent.
I
After the government successfully invoked the state secrets
privilege, the district court dismissed Horn's complaint on three
independent grounds: (1) because Horn cannot make out a prima
facie case absent the privileged material, (2) because the
privilege deprives the defendants of information required in their
defense, and (3) because "the very subject matter of plaintiff's
action is a state secret." Mem. Op. 8. The majority approves
the dismissal of Defendant II, but otherwise rejects the district
court's conclusions on all three grounds.
As to the district court's first ground -- Horn's ability to
establish a prima facie case against Huddle absent the privileged
material -- I generally agree with the legal standard applied by
the majority. But I am less sanguine than the majority that the
unprivileged facts actually suffice to make a prima facie
1
The majority also properly assumes without deciding the
important question of whether "the Fourth Amendment protects
American citizens abroad," Maj. Op. 5, because the question is not
squarely presented here. While the district court in an earlier phase of
this case did find the Fourth Amendment applicable, the government
voluntarily dismissed its appeal of that ruling, and the issue was not
litigated or briefed on this appeal.
2
showing. Once the privileged material is removed, Horn is
essentially left with three pieces of circumstantial evidence --
a cable, a table, and Huddle's apparent lie. I question whether
a reasonable person would seriously entertain the possibility,
based on that evidence alone, that Huddle learned of Horn's
statement via a wiretap. One wonders if the atmosphere of
government intrigue in this case -- an atmosphere carefully
cultivated by Horn and unfortunately only exacerbated by the
government's invocation of the state secrets privilege -- is in
fact doing much of the work in the majority's determination that
Horn has established a prima facie case on such skimpy evi-
dence. Would a reasonable person really think Horn had
established a prima facie case with the same circumstantial
evidence if he was an OSHA inspector in Hoboken?
A
But while I remain skeptical that Horn has a prima facie
case once the privileged material has been removed, my
fundamental disagreement with the majority relates to the
controlling legal standard applicable to the district court's
second and third grounds for dismissal. The majority does not
expressly disagree with the district court's conclusion that, as a
result of the invocation of the privilege, Huddle will be deprived
of information necessary to mount an effective defense. Instead,
relying on Molerio v. FBI, 749 F.2d 815 (D.C. Cir. 1984), and
dicta from Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983),
the majority concludes dismissal is inappropriate unless the
privileged material contains a defense so "dispositive" as to
"require judgment for the defendant." Maj. Op. 17 & n.4.
To be sure, the privileged defense in Molerio was dis-
positive, and the court dismissed on that basis. But the court in
Molerio merely determined that a dispositive defense is a
sufficient basis for dismissal, not that a privileged defense must
be dispositive for dismissal to be appropriate. See Molerio, 749
3
F.2d at 825. Because Molerio was the paradigmatic "easy case,"
it is unhelpful in establishing the proper standard for harder
cases presenting less than dispositive, but nonetheless meritori-
ous, defenses.
This is one of those harder cases, and the majority has
responded by borrowing Molerio's description of an extreme
(and therefore easy) case to establish the new baseline for
dismissal. In so doing, the majority relies extensively on
speculative language from Ellsberg about the effect of the state
secrets privilege on privileged defenses. See Maj. Op. 15­20.
Thus, the majority purports to apply "long-settled precedent" in
precluding all but dispositive privileged defenses. Maj. Op. 19.
But as both the majority and dissent in that case recognized,
Ellsberg's sweeping comments about privileged defenses were
dicta. See Ellsberg, 709 F.2d at 64 (noting that in light of its
disposition, further discussion was not necessary to resolve the
case, but that the court "consider[ed] it prudent to address
briefly some of the problems the trial court will confront on
remand"); id. at 73 (MacKinnon, J., concurring in part and
dissenting in part) (characterizing the part of the Ellsberg
opinion relied on by the majority here as "muddled dicta"
presenting "novel procedures" that "I would be very surprised
if the court on remand even attempted to apply" in light of a
likely alternative resolution of the case); see also Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) ("[G]eneral
expressions, in every opinion, are to be taken in connection with
the case in which those expressions are used. If they go beyond
the case, they may be respected, but ought not to control the
judgment in a subsequent suit when the very point is presented
for decision.").
Ellsberg's abstract discussion of privileged defenses is only
controlling, therefore, to the extent it is persuasive. As the
majority in Ellsberg itself recognized, the potential for "serious
4
injustice" arises when defenses are compromised by the govern-
ment's invocation of the state secrets privilege:
Deprived of the ability in practice to adduce the evidence
necessary to mount a defense to the plaintiffs' prima facie
case, the defendants could be held liable in damages for
what in fact was wholly blameless conduct. Such a result
not only would be patently inequitable, but might have an
unfortunate long-run impact on the recruitment and behav-
ior of government officials.
Ellsberg, 709 F.2d at 69 (footnote omitted). The Ellsberg
majority speculated this "serious injustice" might be ameliorated
by "recent developments" in the doctrine of qualified immunity.
Id. But, as the majority here recognizes, the doctrine of quali-
fied immunity does nothing for Huddle. Maj. Op. 15. We are
thus left with the "serious injustice" identified in Ellsberg,
without the supposed "way out of th[e] dilemma" envisioned by
the Ellsberg majority. Ellsberg, 709 F.2d at 69. Dictum lacks
binding precedential value precisely because abstract musings
often fail to produce fully-considered legal rules. When "we
accept dictum uttered in a previous opinion as if it were binding
law, which governs our subsequent adjudication . . ., we fail to
discharge our responsibility to deliberate on and decide the
question which needs to be decided." Pierre N. Leval, Judging
Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. REV.
1249, 1250 (2006).
Indeed, perhaps recognizing the potential for "serious
injustice" identified in Ellsberg, no other circuit has adopted the
severe defense standard applied by the majority here. Few state
secrets cases have been resolved on the defense prong. How to
treat privileged defenses is an exceedingly difficult question,
and most cases that have presented defense issues have been
dismissed on other grounds. See, e.g., Bareford v. Gen. Dynam-
5
ics Corp., 973 F.2d 1138, 1143 (5th Cir. 1992). But the few
circuits to address squarely the issue have not applied the
defendant-adverse standard favored by the majority. See, e.g.,
El-Masri v. United States, 479 F.3d 296, 309­10 (4th Cir. 2007)
(dismissing in the alternative on the ground that "the defendants
could not properly defend themselves without using privileged
evidence"); Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir.
2004) (dismissing because "Defendants cannot defend their
conduct with respect to [the plaintiff] without revealing the
privileged information").
By equating a "valid" defense with a "dispositive" defense,
and noting that "[o]ther circuits have . . . rel[ied] upon Molerio
to adopt the `valid defense' standard," Maj. Op. 16, the majority
papers over the novelty of the defense standard it is applying.
True, other circuits have referenced the "valid defense" stan-
dard, and cited Molerio in support, but it is not at all clear that
in doing so they interpreted "valid" as meaning "dispositive," as
opposed to "valid" as meaning simply "meritorious." See
BLACK'S LAW DICTIONARY 1586 (8th ed. 2004) (defining
"valid" as both "[l]egally sufficient" and "[m]eritorious").
Indeed, the Sixth Circuit in Tenenbaum -- the only circuit
actually to apply a "valid defense" standard -- apparently meant
the latter, since in dismissing the case, it stated only that
"Defendants cannot defend their conduct . . . without revealing
the privileged information," and made no suggestion that any of
the defenses were dispositive. 372 F.3d at 777.2
2
The majority also cites In re United States, 872 F.2d 472, 476
(D.C. Cir. 1989), for its discussion of the "valid defense" standard.
See Maj. Op. 16, 19. The court in In re United States, however, had
no occasion to apply any privileged-defense standard -- certainly not
the standard advanced by the majority. See In re United States, 872
F.2d at 482 (D.H. Ginsburg, J., concurring and dissenting) ("Here it
is not at all clear that the Government's secret defense is dispositive
6
The majority's privileged-defense standard is troubling both
in its sharp departure from the other circuits and in its potential
effect on public officers. If a government officer accused of
malfeasance has several meritorious -- but not sure-fire --
privileged defenses, those defenses are now simply irrelevant.3
The majority also completely ignores the potential for
distortion when valid defenses are excised by invocation of the
privilege. As Judge Phillips noted over a quarter-century ago,
it is "important to keep in mind that by its very nature" the state
secrets privilege "compromises the intrinsic fairness of the
adversary litigation process which has been provided for formal
dispute resolution" -- for both plaintiffs and defendants alike.
Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 277 n.2 (4th
Cir.) (Phillips, J., specially concurring and dissenting), maj. op.
rev'd per curiam, id. at 281 (1980) (en banc). When application
of the privilege so "compromises the intrinsic fairness" of a
judicial proceeding -- whether because it has removed too much
(or even meritorious under New York law)." (alterations in original
omitted)). In any event, any privileged-defense discussion in In re
United States is irrelevant; unlike here, the government itself was the
defendant in In re United States, and, "[i]n Ellsberg, this court made
clear that a government party does not forfeit a meritorious defense
merely because it would need to rely on privileged materials in order
to assert it." Id. at 481 (emphasis added).
3
The majority further states that "Huddle has already revealed his
defense -- that he learned of Horn's conversation through Stubbs --
and it is unprivileged." Maj. Op. 17. Surely the majority cannot mean
to imply that Huddle is limited to only one defense. As the majority
is aware, the district court in a classified portion of its opinion
recounted specific aspects of the privileged material Huddle would
require to mount an effective defense at trial. Mem. Op. 11 (redacted).
None of that material relates to Horn's disputed conversation with
Stubbs.
7
information from the plaintiff's case or from the defendant's
defense, or, as in this case, both -- the right solution is not
simply to muddle on, but rather "to withdraw from . . . litigants
their normal right of access to the formal dispute resolution
forum provided by the sovereign." Id. at 279. To permit a
grossly distorted case -- where the court knows the "facts"
being litigated are only a parody of the real facts -- to continue
in our courts is not justice, and only invites injustice. See id. at
279 n.5 ("[Dismissal is appropriate] where the judge can sense
that the actual dispute as defined by the issues so far differs from
the dispute that could be litigated while honoring the privilege
as to draw in question the fairness of attempting to apply to the
restricted dispute the legal principles appropriate to resolution
of the actual dispute.").4
B
By stripping meritorious defenses from Huddle and leaving
gaping holes in Horn's prima facie case, the invocation of the
4
The majority argues that considering the "`distortion' effects of
. . . omitted defenses . . . . abridge[s] the rights of plaintiffs," Maj. Op.
19, and "thwart[s] a citizen's efforts to vindicate his or her
constitutional rights," id. at 20. Of course, that argument begs the
very question that divides us: Do plaintiffs have a "right" to use the
courts to press a case against a defendant when the available "facts"
of that case no longer approximate reality? Ironically, it is the
majority's unprecedented privileged-defense standard that creates "a
system of conjecture," Maj. Op. 18, where fact-finders are forced to
invent the missing parts of the story. The majority's standard, not
mine, "impose[s] a presumption." Id. I am advocating a case-by-case
assessment of how the privilege has affected the shape of the case
being presented to the fact-finder, not "dismissal of a complaint for
any plausible or colorable defense." Id. The majority, in contrast, is
effectively establishing a presumption that plaintiffs able to make a
prima facie showing deserve to prevail against defendants relying on
meritorious privileged defenses, unless those defenses are dispositive.
8
privilege so distorts this case that dismissal is necessary. "[T]he
undisclosable scope of privilege lies so completely athwart the
scope of proof relevant to resolution of the issues presented that
litigation constrained by administration of the privilege simply
could not afford the essential fairness of opportunity to both
parties that is a fundamental assumption of the adversary
system." Id. at 279. Even assuming, however, that the majority
remains indifferent to the distortion caused by the privilege, the
district court's third ground for dismissal -- that the "very
subject matter" of Horn's action is a state secret -- should be
affirmed. The district court expressed concern that state secrets
are "so central to the subject matter of [Horn's case] that any
attempt to proceed will threaten disclosure of privileged mat-
ters." Mem. Op. 11­12 (quoting Fitzgerald v. Penthouse Int'l,
Ltd., 776 F.2d 1236, 1241­42 (4th Cir. 1985)). The majority
apparently disagrees, finding "national security concerns . . .
peripheral to what remains of Horn's prima facie case." Maj.
Op. 22.
In applying the "very subject matter" ground, other circuits
have focused on the threat of inadvertent disclosure of privi-
leged material posed by further litigation. See Kasza v. Brown-
er, 133 F.3d 1159, 1170 (9th Cir. 1998); Black v. United States,
62 F.3d 1115, 1118 (8th Cir. 1995); Bareford, 973 F.2d at 1143;
Farnsworth Cannon, 635 F.2d at 281 (en banc) (per curiam).
Specifically, courts have considered the extent to which the non-
privileged facts remaining in the case are intertwined with or
surrounded by privileged material. See, e.g., Bareford, 973 F.2d
at 1143 (noting "the practical reality that in the course of
litigation, classified and unclassified information cannot always
be separated"); Fitzgerald, 776 F.2d at 1243 n.11 (explaining
that "the merits of this controversy are inextricably intertwined
with privileged matters"). Courts have expressed special
concern where the plaintiff is in possession of some of the
privileged material. See Fitzgerald, 776 F.2d at 1242 n.8;
9
Farnsworth Cannon, 635 F.2d at 281 (en banc) (per curiam).
Similarly, they have recognized the risk of accidental disclosure
where plaintiffs' cases depend on testimony from witnesses with
personal knowledge of classified secrets "relevant to the subject
matter of the litigation." Fitzgerald, 776 F.2d at 1242; accord
Bareford, 973 F.2d at 1143­44. Courts have taken a practical
approach, looking realistically at the "facts necessary to litigate"
a plaintiff's case, "not merely [those necessary] to discuss it in
general terms." El-Masri, 479 F.3d at 310­11 (collecting cases).
As the Fourth Circuit has explained, "[t]he controlling inquiry
is not whether the general subject matter of an action can be
described without resort to state secrets. Rather, we must
ascertain whether an action can be litigated without threatening
the disclosure of such state secrets." Id. at 308.
This court has had no occasion to apply the "very subject
matter" ground. But applying its logic to Horn's complaint
leads inexorably to the conclusion reached by the district court.
The few remaining unprivileged facts comprising Horn's prima
facie case are islands surrounded by a sea of privileged material.
This case is no different in that regard than Farnsworth Cannon,
Fitzgerald, Bareford, or El-Masri, except that here the islands
are fewer and smaller.5
Moreover, the majority's assertion that Horn "is not in
possession of the privileged material" is mystifying. Maj. Op.
5
The majority characterizes those cases as "inapposite," noting
the centrality of the privileged information to each plaintiff's case.
Maj. Op. 23­24. But this case is no different -- here, the clearly
"sensitive details," Maj. Op. 23, of Huddle's ability to conduct or
order a wiretap are plainly central to Horn's case. And the allegations
in Horn's complaint necessarily rely on the involvement of Defendant
II; thus, dismissing Defendant II does not alter his centrality to Horn's
case.
10
9. Horn clearly knows some of the privileged material, which
the majority elsewhere implicitly concedes when it affirms the
district court's dismissal as to Defendant II, noting "there is no
unprivileged evidence connecting him to Horn's allegations."
See Maj. Op. 13. Admittedly, because Horn has never seen the
classified portions of the two agency investigative reports, he
cannot precisely map the division between what portion of the
information he knows is covered by the privilege, and what
isn't. But that only exacerbates the potential for inadvertent
disclosure, presenting the same problem identified by the Fourth
Circuit in Farnsworth Cannon:
[The ex parte] affidavit [delineating the privileged informa-
tion] has not been seen by [plaintiff's] counsel, and without
some disclosure of the affidavit to counsel, the trial lawyers
would remain unaware of the scope of exclusion of infor-
mation determined to be state secrets. Information within
the possession of the parties on the periphery of the sup-
pression order would not readily be recognized by counsel,
unaware of the specific contents of the affidavit, as being
secret or as clearly having been suppressed by the general
order of the district court. In an attempt to make out a
prima facie case during an actual trial, the plaintiff and its
lawyers would have every incentive to probe as close to the
core secrets as the trial judge would permit. Such probing
in open court would inevitably be revealing.
Farnsworth Cannon, 635 F.2d at 281 (en banc) (per curiam).
Likewise, the majority suggests the unavailability of the
privileged IG reports is of little consequence to Horn's case,
because "there would be no barrier to his calling the [reports']
affiants as witnesses in order to testify to . . . unclassified
matters." Maj. Op. 14. The majority is unconcerned that
witnesses with relevant knowledge who might be called to
11
testify are also sure to possess privileged information relevant
to Horn's case. Because the demarcation between the privileged
and unprivileged information is by no means intuitive and, like
Horn, the witnesses themselves would not be privy to the exact
scope of the privilege, "the danger that witnesses might divulge
some privileged material during [direct and] cross-examination
is great." Bareford, 973 F.2d at 1144.
All of these considerations support the district court's third
ground for dismissal. The majority comments that, at this stage
of the proceedings, "Horn need not plead the facts sufficient to
prove his allegations and evidence that will ultimately be used
at trial." Maj. Op. 14. That is true; however, the government's
invocation of the state secrets privilege in this case requires us
to frankly consider whether Horn's case "can be litigated
without threatening the disclosure of . . . state secrets." El-
Masri, 479 F.3d at 308. Relying on the same case- and fact-
specific approach favored by every other circuit that has
considered the issue, and based on my review of the entire
record in this case, I would find the risk of disclosure too great.
Here, the few unprivileged facts remaining are so entwined with
privileged matters, and the risk of disclosure of privileged
material so unacceptably high, that the very subject matter of
this action is a state secret.6
6
The majority characterizes the declaration of the Director of
Central Intelligence as "reject[ing] the notion that all of Horn's lines
of inquiry are inextricably interwoven." Maj. Op. 22. But the
declaration, which in the portion cited explains only that some
potentially relevant evidence presents "no risk to U.S. national
security" once segregated, says absolutely nothing about whether
attempting to litigate a specific case involving that evidence might
present an unacceptably high risk of disclosure. To state that specific
pieces of evidence are unprivileged is obviously not tantamount to
stating that any litigation involving that evidence could never run an
unacceptable risk of disclosure of state secrets. The majority's attempt
12
II
This circuit's state secrets cases have predominantly turned
on the first of the three grounds relied on by the district court in
dismissing Horn's case.7 The majority's disposition requires it
to address all three grounds, but in doing so it gives short shrift
to the important issues of distortion and disclosure. In my view,
both of these issues are most effectively considered when
analyzing whether the "very subject matter" of a case is a state
secret. Thus, I would analyze the effect of invocation of the
state secrets privilege as follows: First, can the plaintiff establish
a prima facie case absent the privileged material? Second, if so,
is a dispositive (i.e., Molerio-type) defense barred by the
invocation of the privilege? Third, is the very subject matter of
the case a state secret? In evaluating this final prong, I would
consider the issues of distortion and disclosure: Has removal of
facts relevant to the plaintiff's prima facie case or the defen-
dant's defense, or both, so distorted the case that the litigation
no longer even approximates reality? And does further litigation
threaten inadvertent disclosure?
While I find this framework helpful, another might work
equally well. The problem with the majority's approach is its
elevation of the rhetoric of perfect justice over the realities of
distortion and disclosure. The question is not whether we like
or approve of the state secrets privilege. It exists. The question
is how the existence of the privilege, properly invoked, reshapes
the case. In reversing the district court's conclusion that the
to wrest the latter implication from the declaration far exceeds that
document's purpose and scope.
7
Molerio turned on the second ground, but, as noted, Molerio was
an easy case presenting a clearly determinative privileged defense.
See 749 F.2d at 825.
13
very subject matter of Horn's case is a state secret, the majority
rejects the standard consistently used by other federal courts and
fails to offer any alternative.8 To make matters worse, the
majority announces a new and troublingly high threshold for
dismissal when invocation of the privilege compromises the
defenses of government officials.
I respectfully dissent.
8
The majority comments "there is no need to usurp . . . from the
district court" the judgment of whether the very subject matter of
Horn's case is a state secret. Maj. Op. 25. Yet that is exactly what the
majority has done, explaining that "the district court has not yet
evaluated the case as it now stands." Maj. Op. 24 (emphasis added).
But the case "as it now stands" is no different than the case the district
court dismissed except the majority has put Huddle back in. In
dismissing Horn's entire case, the district court certainly considered
whether an action against Huddle alone risked disclosure of state
secrets, stating that "[a]t the heart of plaintiff's claim is . . .
information that is at the center of the state secrets privilege" and that
"any attempt to proceed will threaten disclosure of privileged
matters." Mem. Op. 12 (emphases added) (citation omitted).

Shayana Kadidal
Michael Ratner
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012-2317
Phone: (212) 614-6438
Fax: (212) 614-6499
Email: kadidal@ccr-ny.org
David Cole
c/o Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
Phone: (202) 662-9078
Michael Avery
J. Ashlee Albies
NATIONAL LAWYERS GUILD
c/o Suffolk Law School
120 Tremont Street
Boston, MA 02108
Phone: (617) 573-8551
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
____________________________________
| No. M:06-cv-01791-VRW
IN RE NATIONAL SECURITY AGENCY |
| PLAINTIFFS' [PROPOSED]
TELECOMMUNICATIONS RECORDS | SUPPLEMENTAL COMPLAINT
LITIGATION |
____________________________________|
This Document Relates Only to:
Center for Constitutional Rights v. Bush, Case No. 07-1115
JURISDICTION AND VENUE
1. This action arises under the United States Constitution, 50 U.S.C. 1801 et. Seq..
The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1361.
INTRODUCTION
2. This supplemental complaint sets forth several developments subsequent to the
filing of the initial complaint in this case. In particular, plaintiffs seek to file this supplemental
complaint now in order to challenge the constitutionality of new legislation authorizing
electronic surveillance of their attorney-client communications with overseas clients and
witnesses. Plaintiffs maintain that the statute is unconstitutional as applied to their conversations
under the First and Fourth Amendments, and seek injunctive relief to protect their ability to
consult their clients with assurances of confidentiality essential to their communications.
3. On August 5, 2007, Defendant President Bush signed into law the Protect
America Act of 2007, which amended the Foreign Intelligence Surveillance Act (FISA). The
amendments substantially expand the government's ability to conduct warrantless surveillance of
U.S. citizens' phone conversations with persons overseas, without probable cause of any
criminal activity.
4. Plaintiffs therefore seek additional injunctive and declaratory relief, finding the
Protect America Act in violation of their First and Fourth Amendment rights
FACTS
NEW STATUTORY SCHEME
5. On August 5, 2007, the President signed into law the Protect America Act of
2007. Pub. L. No. 110-055, 121 Stat. 522. The Act amends FISA, and substantially expands the
statutory authority of the government to wiretap communications without warrants or any similar
meaningful judicial oversight, and without probable cause of criminal activity.
6. Under the new law, the Attorney General and the Director of National
Intelligence have the authority to establish procedures and to authorize, for periods up to one
2
year and without judicial oversight, "the acquisition of foreign intelligence information
concerning people reasonably believed to be outside the United States." 50 U.S.C. §§ 1805A,
1805B. The term "foreign intelligence information" was previously defined by FISA, and
includes "information with respect to a foreign power or foreign territory that relates to, and if
concerning a United States person is necessary to[,] the national defense or the security of the
United States; or [] the conduct of the foreign affairs of the United States." 50 U.S.C. § 1801(e).
7. To authorize such acquisition, the DNI and AG must "determine" that the
surveillance is "directed at a person reasonably believed to be outside the United States" (or
otherwise does not constitute "electronic surveillance" under FISA) and that "a significant
purpose of the acquisition is to obtain foreign intelligence information." The DNI and the AG
must also establish what they "determine" to be "reasonable procedures" to ensure that such
acquisition "concerns persons reasonably believed to be located outside the United States." 50
U.S.C. §§ 1805B(a), 1805A. This "determination" is to be reduced to a written certification,
supported by affidavit of "appropriate officials in the national security field," but is "not required
to identify any specific facilities, places, premises, or property at which the acquisition of foreign
intelligence information will be directed." 50 U.S.C. § 1805B(a),(b). The DNI and the AG need
not find probable cause that the target of the surveillance is a "foreign agent" as defined in FISA
or is involved in any criminal activities whatsoever. A copy of this certification is then
transmitted to the FISA court, where it is to remain sealed, hidden away from judicial review,
unless the certification is "necessary to determine the legality of the acquisition." 50 U.S.C. §
1805B(c).
8. The Act remains in effect for only 180 days from the date of passage. The AG has
up to 120 days after the effective date of the act to submit the procedures established under 105B
3
to the Foreign Intelligence Surveillance Court (FISC). The FISC shall then review them to assess
whether the AG and DNI's determination that those procedures are "reasonably designed" to
avoid acquisitions constituting electronic surveillance is "clearly erroneous." Id. § 1805C(b). As
a practical matter, no meaningful judicial review of the "reasonable procedures" exists. Even if
the FISC were to act promptly and reject the government's procedures, the government has
another 30 days to respond with new procedures.
9. As noted in paragraph 6, the surveillance may be authorized for up to one year.
Any authorizations in effect at the time the law expires in 180 days will not be affected by the
termination of the law. Pub. L. No. 110-055, 121 Stat. 522, Section 6(d). This allows the
government to engage in warrantless surveillance under the law not only for the 180 days that it
is in effect, but for another year for authorizations put in place shortly before the Act is about to
expire.
10. Thus, the content of private communications of people within the U.S. may be
monitored without a warrant, so long as that person in the U.S. is not the target (even if the target
outside the U.S. is a U.S. citizen). Warrantless surveillance is authorized without any showing of
probable cause of illegal activity or that the target is an agent of a foreign power. No procedures
exist to safeguard confidential attorney-client communications, nor any other privileged
communications. (While minimization procedures are alluded to, see 50 U.S.C. § 1805B(5),
there is no requirement that such procedures be judicially supervised, and the adequacy of the
minimization procedures is outside the purview of the limited judicial review provided for by
§ 1805C(b).)
4
EFFECT OF NEW STATUTORY SCHEME ON PLAINTIFFS
11. Plaintiffs' professional obligations require them to engage in telephonic and email
communications with individuals outside the U.S., including attorneys who are U.S. citizens.
Plaintiffs have a reasonable expectation of privacy in such conversations.
12. The newly enacted statutory scheme permits Defendants to conduct electronic
surveillance of plaintiffs' attorney-client conversations without a showing of probable cause that
plaintiffs or their clients are engaged in criminal activity, without a warrant, and without any
meaningful judicial oversight..
13. The new law directly interferes with plaintiffs' ability to carry out their
professional ethical duties of confidentiality and advocacy for their clients.
CLAIMS FOR RELIEF
FIFTH CLAIM FOR RELIEF
(Fourth Amendment violations)
13. Plaintiffs incorporate each and every allegation contained in the preceding
paragraphs and in the original Complaint as if set forth fully herein.
14. The Protect America Act of 2007 violates the Fourth Amendment by authorizing
Defendants to carry out unreasonable surveillance of Plaintiffs' private telephone and email
communications with their clients and witnesses without probable cause or a warrant.
SIXTH CLAIM FOR RELIEF
(First Amendment Violations)
15. Plaintiffs incorporate by reference each and every allegation contained in the
preceding paragraphs and the original Complaint as if set forth fully herein.
16. The Protect America Act of 2007 violates the First Amendment by authorizing
Defendants to carry out warrantless surveillance of Plaintiff's attorney-client communications,
5
thereby impairing Plaintiffs' ability to freely provide legal advice, to join together in an
association for the purpose of legal advocacy, to freely form attorney-client relationships, to
vigorously advocate for clients and to petition the government for redress of grievances all of
which are modes of expression and association protected under the First Amendment to the
United States Constitution.
PRAYER FOR RELIEF
Plaintiffs respectfully request that the Court:
(a.) Declare the newly enacted amendments to the FISA that allow Defendants to engage in
warrantless surveillance without probable cause unconstitutional as applied to Plaintiffs'
attorney-client and professional communications, and enjoin any further such warrantless
surveillance;
(b.) Order that all Defendants turn over to Plaintiffs all information and records in their
possession relating to Plaintiffs that were acquired through warrantless surveillance or
were the fruit of any warrantless surveillance, and subsequently destroy any such
information and records in Defendants' possession;
(c.) Award costs, including an award of attorneys' fees under the Equal Access to Justice Act,
28 U.S.C. § 2412(d)(1)(A);
(d.) Award such other relief as the Court may deem just and proper.
Respectfully submitted,
_____/s/Shayana Kadidal______________
Shayana Kadidal
Michael Ratner
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012-2317
(212) 614-6438
6
CCR Cooperating Counsel:
David Cole
c/o Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
(202) 662-9078
Michael Avery
J. Ashlee Albies
NATIONAL LAWYERS GUILD
c/o Suffolk Law School
120 Tremont Street
Boston, MA 92108
(617) 573-8551
counsel for Plaintiffs
Dated: August 10, 2007
7